The opinion
Conley Byrd, Justice, dissenting. It sounds logical to tell the jury that they should not consider the confession of one codefendant against another jointly tried codefendant, but the logic becomes absurd when on appeal we compare one with another to determine if there was any prejudicial error in admitting the confessions. If we do what we tell the jury not to do, then I can find no practical reason why the jury ought to disregard the confession of one defendant when considering the guilt or innocence of the other.
The Constitution prohibits the conviction of an individual without confronting him with the witnesses against him. When the confession of the codefendant is introduced through an officer, the other codefendant has no right to cross-examine the codefendant as to the truth and veracity of the facts therein recited.
Like Justice Marshall in his dissent in Nelson v. O’Neil, 402 U.S. 622, 635 , 91 S. Ct. 1723, 1729 , 29 L. ed. 2d 222 (1971), I think we should follow the procedure suggested by The American Bar Association’s Project on Standards for Criminal Justice. He there stated:
“The American Bar Association’s Project on Standards for Criminal Justice, Advisory Committee on the Criminal Trial, suggested that if a defendant in a joint trial moves for a severance because the prosecutor intends to introduce an out-of-court statement by his codefendant that is inadmissible against the moving defendant, then the trial court should require the prosecutor to elect between a joint trial in which the statement is excluded; a joint trial at which the statement is admitted but the portion that refers to the moving defendant is effectively deleted; and severance. I believe that the adoption of such a practice is the only way in which the recurring problems of confrontation and equal protection can be eliminated.”